In defence of the constitution drafters

THE constitutional reform process has lately been plagued by controversy including unwarranted and unfair attacks by Zanu PF politicians on the team of experts charged with drafting the constitution.

The principal source of the controversy is the unethical and irregular disclosure of confidential information pertaining to the drafting of the constitution.

Although the exact source of the confidential data leak is not known, it is hardly a coincidence that the principal origin of the vicious public criticism of the drafters is Zanu PF and that the location of its publication is the state media, which is controlled by Zanu PF.

Although ZanuPF refuses to take responsibility for the leak, the fact remains that the conduct of its members in the public media cannot go unchallenged. Public attacks of the kind that we have read in the public media reflect cowardly behaviour which undermines the drafting team. It is cowardly because everyone, including those leading the attacks, knows that drafters do not have the same facility to respond publicly to the harsh words and accusations being made against them by Zanu PF politicians.

It is for this reason that drafters must be accorded the same principles of protection against public attacks as those given to judges who, by the nature of their profession, are usually not in a position to respond publicly. It is therefore unfair, unethical and indeed cowardly for politicians to subject drafters to public attacks. It is by no means a fair contest.

The politicians leading these public attacks know very well that there are channels through which they can respond to the drafts that the drafters have produced and there is absolutely no need to play to the public gallery in the manner that we have witnessed lately.

The reasons they have decided to play dirty so early in the drafting process are unclear although it is fair to say that the tactic is probably designed to intimidate and influence the drafters. Zanu PF is trying hard to send the following message to the drafters: â€œWe are watching you and you must play ball.â€�

This pattern of behaviour â€“ which is latent psychological violence â€“ is consistent with the violent tactics designed to intimidate and instil fear.

The main theme of the public attacks is that in drafting the constitution, the drafters are allegedly disregarding the â€œwill of the peopleâ€�. This is based on the premise that data that was gathered from the outreach process is so clear-cut that there is a complete picture of what constitutes the â€œwill of the peopleâ€�. As all members of COPAC and its Technical Committee of Experts are aware, this is not accurate.

That the â€œwill of the peopleâ€� is hazy and incoherent contrary to what some would have the public believe is demonstrated by the following: First, COPAC and its Technical Committee of Experts have had to conduct a process of â€œGap-Fillingâ€�, which essentially means filling in the gaps that were apparent in the data collected from the people.

For example, when people said they wanted devolution of power, they were probably responding to the lived experience under a state that is highly centralised and therefore inefficient across all regions. Yet in proposing devolution, not much thought would have been given to the matter of exactly how this system of government will operate at law and in practice.

The technical and operational design of a devolved system of government in these circumstances would require gap-filling by experts. The experts would then put in the nuts and bolts to the system so that it works. This is the job of COPAC and its Technical Committee of Experts. They then instruct drafters to reduce the proposals into writing.

But even then, drafters may observe gaps that would need filling to ensure that the draft makes sense. In doing so, both COPAC Committee of Experts and the drafters have looked to constitutions of other countries that have similar systems of devolution for guidance. There is nothing wrong about this as looking at precedents is standard drafting practice.

Second, even after filling in the gaps, the COPAC Select Committee and its Technical Committee of Experts found that there were issues that were so unclear that they could not agree what exactly were the agreed views of the people. These unresolved issues have been referred in COPAC nomenclature as â€œParked Issuesâ€�. The idea is that unless there is agreement, they would be referred to the political party principals for resolution.

Some may argue, quite rightly too, that these matters ought to actually be taken back to the people but that is a separate matter. The fact is that the existence of these parked issues reflects that the will of the people is far from certain on all issues contrary to what has been presented by the Zanu PF politicians. If it were so clear, there would be no need for this category of â€œparked issuesâ€� which they know exist.

What the drafters have done, in the interests of trying to assist in the resolution of the â€œparked issuesâ€� is to provide clauses around which the issues can be debated. The rationale for doing this is simple: sometimes it is easier to resolve a problem when you have an actual clause to work from rather than working from a blank page. Perspectives may change based on the form of the clause.

In addition, these clauses are not set in stone. They are merely suggestions and not prescriptions to the nation. COPAC, including the politicians leading the public attacks, know only too well that they have the choice to adopt or reject the suggested wording. Instead, the drafters are being pilloried for their generosity.

Third, as everyone in COPAC knows, not all of the data that was collected during the outreach process was constitutional material. COPAC itself, including Zanu PF politicians leading the public attacks, went through a painstaking process of separating the constitutional issues from those that do not necessarily warrant a place in the constitution.

It is not that the data was considered irrelevant. It was simply that it did not fit into the constitution and could be dealt with under legislation. This was a process of â€œconstitutional distillationâ€� so to speak, to identify the â€œconcentrateâ€� of the â€œwill of the peopleâ€�. But in doing so, several aspects of what the people actually said fell into the residue and was relegated to legislation.

Likewise, even with the distilled data from COPAC, the drafters are bound to come across aspects that would not necessarily fit into the constitution and would best be dealt with under legislation. Thus at the drafting stage there is also an inevitable additional stage of â€œconstitutional distillationâ€�. It is expected of course that the drafters would explain the use or non-use of particular data in the instructions.

In any event, COPAC and the people of Zimbabwe have the ultimate power to judge whether the drafters properly captured their instructions at the Referendum. Public criticism of the drafters at this early stage is, therefore, premature.

Fourth, the people of Zimbabwe ought to be informed that they are not making the new constitution in a legal vacuum. The â€œwill of the peopleâ€� is of serious significance but it also takes into account Zimbabweâ€™s obligations as a member of the international family of nations.

Over the years since independence, Zimbabwe has signed up to various international human rights instruments which set generally accepted standards for governance and rights protection. These include the United Nations Charter of Human Rights, the African Charter on Human and Peopleâ€™s Rights, African Charter on Elections, Democracy and Governance, Convention on the Elimination of all forms of Discrimination against Women, International Covenant on Civil and Political Rights, International Covenant on Economic Social and Cultural Rights, etc.

Some of these instruments have been adopted into our law, therefore forming an integral part of our legal system. In formulating the new constitution, such standards have to be taken into account and upheld. You cannot, for example, include in the constitution the power to permit torture when Zimbabwe has signed up to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which makes the prohibition against torture a non-derogable right.

You cannot say it is part of our culture to give away a girl child as compensation for murder when this is strictly prohibited under international human rights instruments to which we have signed as a people. In drafting the new constitution, the drafters have to apply their expertise to take cognisance of these instruments. They would be neglecting their duty if they did not do so.

Therefore, when the drafters refer to these human rights instruments, they are not imposing foreign rules upon Zimbabweans â€“ they are simply using their expertise to confirm what Zimbabweans have said through these years when they signed up to those rules. Viewed in this way, the â€œwill of the peopleâ€� is not simply what was stated during the limited period of the outreach process but the narrative that Zimbabweans have spoken over the years through adopting international human rights instruments. To castigate drafters for making reference to such instruments reflects poorly on the accusersâ€™ understanding of the law and the process of constitution-making.

Finally, allegations that the drafters have used constitutions from other countries are spurious and demonstrate a lack of understanding of the drafting practice among the critics. As any draftsperson would know, the use of precedents in drafting documents is not a novel practice.

A draftspersonâ€™s task is to find words that best capture and express the intentions of his instructor. Itâ€™s not always that you commence from a blank canvass. If it has been done before and there is a precedent to look up to, you take it into account and re-model it if necessary to best capture the will of the instructor. This is perfectly normal drafting practice.

Therefore, when the drafters consider clauses in the constitutions of countries such as Kenya, Namibia, South Africa and similarly placed African countries, they are by no means imposing other constitutions on Zimbabwe. They are simply using precedents in their efforts to find a formulation that best expresses the instructions from the people of Zimbabwe. They are not copying content but drawing lessons from the style and form of drafting. They could have done the same without telling us which constitutions they looked to for assistance. That they have done so is a credit to their character as honest drafters. They should be commended not derided for their honesty and transparency.

Indeed, it must be added, that all parties in COPAC have throughout the process given examples from other constitutions with some even â€œlooking eastâ€� to the Chinese constitution. References have also been made to the various locally produced drafts including the NCA Draft, the Law Society of Zimbabwe Draft, the Kariba Draft and even the Chidyausiku Draft that was rejected in the 2000 Referendum. All parties, including Zanu PF have referred to these local and external constitutions to assist in the drafting process.

Overall, the relationship between COPAC and the drafters is not unlike that between a home builder and an architect. The home builder gives raw information of the kind of house he wants to the architect and the architect employs his expertise to produce the architectural design. The home builder selects an architect that he trusts and leaves him to do the job. At the end of the day the home builder has a choice to accept or reject the design.

COPAC and the people of Zimbabwe are the home builders and the drafters are the architects. COPAC and the people of Zimbabwe will have their day when they decide whether or not to adopt the design. For now, the drafters must be allowed to get on with their job free from harassment and the vitriol that we have witnessed in recent weeks. It is cowardly behaviour to publicly attack and humiliate someone whom you know very well cannot defend himself.